Two-Step Process for|Juvenile DNA Samples

PHOENIX (CN) – Juveniles charged with certain offenses may be required to submit to DNA testing, but the state may extract a DNA profile from the sample only if the juvenile absconds or fails to appear, the Arizona Supreme Court ruled. Arizona law “requires juveniles charged with certain offenses and summoned to appear at an advisory hearing to submit to the investigating law enforcement agency ‘a sufficient sample of buccal cells or other bodily substances for deoxyribonucleic acid [DNA] testing and extraction,’ Vice Chief Justice Andrew Hurwitz wrote for the court. Buccal cells are obtained from a cheek swab inside the mouth. Arizona’s “statutory scheme involves two separate intrusions on a juvenile’s privacy,” according to the court. “First, the State physically seizes a buccal cell sample from the juvenile. Second, it processes the seized cells and extracts a DNA profile.” Hurwitz wrote that the first search – the physical extraction of the DNA – is constitutional. While the “seizure of buccal cells is a physical intrusion,” it does not reveal intimate information about the juvenile, while the “later search of the sample, however, reveals uniquely identifying information about individual genetics,” Hurwitz wrote. The intrusion of the juvenile’s privacy “in the swiping of a swab to obtain buccal cells is not significantly greater than fingerprinting,” and if “a juvenile is released pending adjudication and later fails to appear for trial without previously having submitted a buccal sample, the opportunity to obtain a DNA profile for identification purposes will have been lost,” the court ruled. The second search, however, “presents a greater privacy concern than the buccal swab because it involves the extraction (and subsequent publication to law enforcement nationwide) of 13 genetic markers from the arrestee’s DNA sample that create a DNA profile effectively unique to that individual.” Arizona claims that once it has “lawfully obtained the cell samples, the Fourth Amendment provides no greater bar to the processing of those samples and the extraction of the DNA profile than it does to the analysis of fingerprints,” Hurwitz wrote. But Hurwitz found that there is no “interest sufficient to justify the serious intrusion on the privacy interests of the juveniles occasioned by the second search.” Whether the juvenile “is eventually adjudicated delinquent, the benefit to law enforcement of obtaining a DNA profile in the few weeks between the advisory hearing and trial is speculative at best.” A juvenile accused of a crime, “although having diminished expectations of privacy in some respects, does not forfeit Fourth Amendment protections with respect to other offenses not charged absent either probable cause or reasonable suspicion,” Hurwitz wrote. Four justices concurred.